Citation Nr: 1319965 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-22 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Oakland, California, that, in pertinent part, denied the above claims. This matter was previously before the Board in September 2009, April 2011, and June 2012 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In its April 2011 and June 2012 remands, the Board noted that the Veteran had been afforded a VA examination in February 2010 and explained why the etiology opinions regarding the low back and right hip disabilities provided by the examiner in February 2010 and May 2011 were inadequate. The Board requested each time that the examiner provide an addendum consistent with its remand order. Unfortunately, as in the May 2011 opinion, the examiner merely reiterated his February 2010 opinion regarding each disability July 2012 and January 2013 addendums. At this point, it is apparent that this examiner is not going to answer the necessary questions the Board has posed. Therefore, the Board must request that the Veteran be provided with a new VA orthopedic examination with a qualified physician in order to assess the nature and etiology of his asserted low back and right hip disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain all outstanding VA medical records and associate them with the Veteran's claims file All efforts to obtain these records must be documented in the claims file. Such efforts should continue until successful, or it is reasonably certain that the requested records do not exist and that further efforts would be futile. 2. Once the above development has been completed, the RO/AMC shall provide the Veteran with a VA orthopedic examination with a qualified physician to determine whether any current low back or right hip disability found on examination is etiologically related to active service. The claims file, including a copy of this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is requested to list all current low back and right hip disabilities. All pertinent symptomatology and findings must be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not that any current low back and right hip disability, to include degenerative disc disease of the lumbar spine and arthritis of the right hip, had onset in service or is otherwise related to a disease or injury in service, including while the Veteran was running from a military vehicle which came under enemy fire during his service in the Republic of Vietnam. In so stating, the examiner must presume the credibility of the Veteran's reports of unspecified low back and right hip injuries during active service. The examiner must provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she must provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. The examiner must provide detailed reasons for the opinion offered. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. If the appeal is returned to Board without compliance of the Remand directives, another remand will likely result. Stegall, 11 Vet. App. at 271. 4. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).